Citation Nr: 0613109
Decision Date: 05/05/06 Archive Date: 05/15/06
DOCKET NO. 03-28 996 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to Dependency and Indemnity Compensation
(DIC) under 38 U.S.C.A. § 1318.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
INTRODUCTION
The veteran had active service from December 1952 to November
1954. The veteran died in 2002; the appellant is the
veteran's widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, the Commonwealth of Puerto Rico that denied the
appellant's claim of entitlement to service connection for
the cause of the veteran's death, as well as her claim for
Dependency and Indemnity Compensation (DIC) benefits under
38 U.S.C.A. § 1318.
FINDINGS OF FACT
1. The veteran died in 2002 as the result of a
cardiorespiratory attack due to an acute myocardial
infarction due to coronary artery disease.
2. At the time of the veteran's death, service connection
was in effect for schizoaffective disorder (100 percent
disability evaluation assigned) and for post-gastrectomy
syndrome (40 percent disability evaluation assigned).
3. Service medical records do not indicate that the veteran
had any chronic cardiac condition or any chronic respiratory
condition and there is no evidence of continuity of these
conditions since the veteran's time in service.
4. There is no competent medical evidence that establishes a
relationship between the veteran's fatal cardiorespiratory
failure/myocardial infarction and his military service.
5. The veteran's service-connected disabilities did not
cause, contribute to, or hasten, his death.
6. The veteran was in actual receipt of total compensation
benefits effective from August 2001 until his death in 2002,
a period of less than 10 years.
CONCLUSIONS OF LAW
1. The criteria for the establishment of service connection
for the cause of the veteran's death have not been met.
38 U.S.C.A. §§ 1310, 5102, 5103, 5103A, 5107 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.310, 3.312 (2005).
2. The criteria for dependency and indemnity compensation
(DIC) pursuant to 38 U.S.C.A. § 1318 have not been met.
38 U.S.C.A. §§ 1318, 5102, 5103, 5103A, 5107 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.22 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duty to Notify and Assist
VA has specified duties to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. VA must notify the appellant of evidence
and information necessary to substantiate her claims and
inform her whether she or VA bears the burden of producing or
obtaining that evidence or information. 38 U.S.C.A.
§ 5103(a) (West 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29,
2001) (codified as amended at 38 C.F.R. § 3.159(b));
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The
appellant was notified of the information necessary to
substantiate her cause of death and DIC claims by
correspondence dated in December 2002. This document
informed the appellant of VA's duty to assist and what kinds
of evidence the RO would help obtain.
In that letter, and in the Statement of the Case (SOC), the
RO informed the appellant about what was needed to establish
entitlement to service connection for the cause of the
veteran's death and what was needed to establish entitlement
to DIC benefits under 38 U.S.C.A. § 1318. Therefore, VA has
no outstanding duty to inform the appellant that any
additional information or evidence is needed.
Even if the appellant was not provided with all of the
required notice until after the RO had adjudicated the
appellant's claims, "the appellant [was] provided the
content-complying notice to which [s]he [was] entitled."
Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004).
Consequently, the Board does not find that any late notice
under the law requires remand to the RO. Nothing about the
evidence or any response to any notification suggests that
the case must be re-adjudicated ab initio to satisfy the
requirements of 38 U.S.C.A. §§ 5102, 5103, and 5103A (West
2002 & Supp. 2005) or the implementing regulations found at
38 C.F.R. § 3.159 (2005).
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 66 Fed. Reg. 45,620,
45,630-31 (Aug. 29, 2001) (codified as amended at 38 C.F.R.
§ 3.159(c), (d)). Here, VA obtained the veteran's VA medical
records. The appellant was informed about the kind of
evidence that was required and the kinds of assistance that
VA would provide and she was supplied with the text of
38 C.F.R. § 3.159. The appellant did not provide any
information to VA concerning available treatment records that
she wanted the RO to obtain for her that were not obtained.
The appellant was given more than one year in which to submit
evidence after the RO gave her notification of her rights
under the pertinent statute and regulations. In addition, in
a written statement submitted in April 2004, the appellant's
representative stated that the appropriate development was
accomplished pursuant to 38 C.F.R. § 3.159. Therefore, there
is no duty to assist or notify that is unmet.
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman, slip op. at 14. Additionally, this notice
must include notice that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded. Id. Although the RO did not advise
the appellant of such information, because her claims are
being denied, the questions of an appropriately assigned
evaluation and the effective date for a grant of service
connection are not relevant. Proceeding with this matter in
its current procedural posture would not therefore inure to
the appellant's prejudice.
The appellant was provided with notice as to the medical
evidence needed for service connecting the cause of death, as
well as the assistance VA would provide. She was also
provided with notice as to what was required for an award of
DIC benefits under 38 U.S.C.A. § 1318. Therefore, there is
no duty to assist that was unmet and the Board finds no
prejudice to the appellant in proceeding with the issuance of
a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394
(1993) (where the Board addresses a question that has not
been addressed by the agency of original jurisdiction, the
Board must consider whether the veteran has been prejudiced
thereby).
All relevant facts with respect to the claims addressed in
the decision below have been properly developed. Under the
circumstances of this case, a remand would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).
The Merits of the Claims
In adjudicating a claim, the Board determines whether (1) the
weight of the evidence supports the claim or, (2) whether the
weight of the "positive" evidence in favor of the claim is in
relative balance with the weight of the "negative" evidence
against the claim. The appellant prevails in either event.
However, if the weight of the evidence is against the
appellant's claim, the claim must be denied. 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
The veteran's death certificate states that he died from
cardiorespiratory arrest due to or as a consequence of an
acute myocardial infarction due to or as a consequence of
coronary artery disease.
The appellant contends that service connection for the cause
of the veteran's death should be established because his
psychiatric disability affected his heart rate and his death
was due to cardiac arrest. She also contends that the
veteran's death was materially caused by the medications he
took for his service-connected disabilities.
To establish service connection for the cause of a veteran's
death, the evidence must show that disability incurred in or
aggravated by service either caused or contributed
substantially or materially to cause death. For a service-
connected disability to be the cause of death, it must singly
or with some other condition be the immediate or underlying
cause, or be etiologically related. For a service-connected
disability to constitute a contributory cause, it is not
sufficient to show that it casually shared in producing
death, but, rather, a causal connection must be shown.
38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.
The cause of the veteran's death may be service connected if
a disability which the veteran incurred or aggravated in
service was either the principal or contributory cause of his
death. 38 C.F.R. § 3.312(a). For a service-connected
disability to be the principal cause of death, that
disability must singly or with some other condition be the
immediate or underlying cause, or be etiologically related.
38 C.F.R. § 3.312(b). For a service-connected disability to
be a contributory cause of death, that disability must
contribute substantially or materially to death; it must
combine to cause death; it must aid or lend assistance to the
production of death. 38 C.F.R. § 3.312(c)(1). See Harvey v.
Brown, 6 Vet. App. 390 (1994).
A service-connected disability may be a contributory cause of
death if it results in debilitating effects and general
impairment of health to the extent that would render the
person materially less capable of resisting the effects of
other disease or injury primarily causing death. 38 C.F.R.
§ 3.312(c)(3).
A service-connected disability may be a contributory cause of
death if it affected a vital organ and was of itself of a
progressive or debilitating nature and was of such severity
as to have a material influence in accelerating death.
38 C.F.R. § 3.312(c)(4).
Service-connected diseases or injuries involving active
processes affecting vital organs should receive careful
consideration as a contributory cause of death, the primary
cause being unrelated, from the viewpoint of whether there
were resulting debilitating effects and impairment of health
to the extent that would render the person materially less
capable of resisting the effects of other disease or injury
primarily causing death. 38 C.F.R. § 3.312(c)(3).
During his lifetime, the veteran was in receipt of service
connection for schizoaffective disorder (100% evaluation,
effective in August 2001) and for post-gastrectomy syndrome
(40 % evaluation, effective in July 1979). These
disabilities were a combined 100% at the time of the
veteran's death.
The veteran never filed a claim for service connection for
high blood pressure or for coronary artery disease. There is
no clinical evidence of continuity of these conditions since
the veteran's time in service.
Review of the veteran's service medical records reveals that
he was never diagnosed with any chronic cardiac or
respiratory ailment. The veteran's entrance and separation
examinations do not contain any findings relating to heart or
lung pathology.
Post-service, the veteran was hospitalized on a few occasions
between 1957 and 1965; he did not complain of any cardiac or
respiratory symptoms and there were no findings of any such
conditions. No diagnosis of any respiratory or cardiac
condition was rendered by any of the veteran's doctors. The
veteran underwent a VA medical examination in November 1972;
the examiner stated that there was no cardiovascular
pathology. In 1980, the veteran said that he had had a
myocardial infarction several years before, but there is no
medical evidence of record to substantiate that statement.
The first indication of any cardiac condition post-service is
found in an April 2000 VA clinic note in which it was noted
that the veteran's medical problems included hypertension.
Subsequently, an August 2000 VA clinic note indicated that
the veteran had coronary artery disease and high blood
pressure. A September 2000 VA clinic note indicates that the
veteran's high blood pressure had been discovered one year
earlier. There is no clinical evidence of record indicating
that the onset date of any respiratory or cardiac disorder
pre-dated the late 1990s diagnoses or that there was any
etiologic connection to the veteran's two years of active
service or to his service-connected disabilities.
The written statements of the appellant that the veteran's
death was causally connected to the veteran's service-
connected disabilities or to some incident of the veteran's
active service are not probative as there is no evidence in
the record that the appellant has any medical knowledge or
expertise to render such an opinion. Espiritu v. Derwinski,
2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91
(1993). See also LeShore v. Brown, 8 Vet. App. 406, 409
(1995); Moray v. Brown, 2 Vet. App. 211, 214 (1993).
Furthermore, the appellant has not submitted any medical
opinion in support of her theory that the veteran's fatal
conditions were etiologically related to his service. Nor
has the appellant has submitted any medical evidence that
indicates that a relationship exists between the veteran's
service-connected disabilities and his death. In fact, there
is no medical evidence of record that suggests any
relationship between the disease processes that influenced
the veteran's demise and his military service or his
previously service-connected disabilities.
Therefore, the Board finds that there is no approximate
balance of the positive and negative evidence as to whether
the veteran's fatal cardiorespiratory attack and myocardial
infarction were traceable to his military service or that
said conditions were incurred as a result of either one of
his service-connected disabilities. The preponderance of the
competent and probative medical evidence of record is against
the claim. The evidence shows that the veteran's fatal
cardiorespiratory attack and myocardial infarction were not
caused by any incident of service, including any service-
connected disability or treatment thereof.
In reviewing the record, the Board does not find any medical
evidence that either one of the veteran's service-connected
disabilities caused or contributed to the cause of his death.
There is no suggestion, even when 38 C.F.R. § 3.312 is
considered, that the service-connected psychiatric disability
or the post-gastrectomy disability was a principal cause of
death or otherwise affected a vital system such as the heart
or lungs or vascular system to the extent that it may be
considered a factor.
In short, the evidence does not indicate that either one of
the veteran's service-connected disabilities was a condition
that contributed to the veteran's death. Thus, the Board
finds that neither of these disabilities contributed to the
veteran's death or made worse any condition that did. See
38 C.F.R. § 3.312(c)(3).
Pursuant to 38 U.S.C.A. § 5107(b), where, after review of all
the evidence, there is an approximate balance of positive and
negative evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
In this case, the Board finds that there is no approximate
balance of the positive and negative evidence as to whether
the veteran's fatal cardiorespiratory attack was incurred in
or aggravated by service, or was caused or made worse by
either one of his service-connected disabilities. The
preponderance of the evidence is against the appellant's
claim for service connection for the cause of the veteran's
death. Because the preponderance of the evidence is against
the claim, the benefit-of-the-doubt doctrine does not apply.
Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).
There can be no doubt from review of the record that the
veteran rendered honorable and faithful service for which the
Board is grateful, and that the appellant is sincere in her
belief that the veteran's death was related to military
service. However, while the Board has carefully reviewed the
record in depth, it has been unable to identify a basis upon
which service connection may be granted.
Turning to the appellant's claim for DIC benefits, under
38 U.S.C.A. § 1318, VA death benefits may be paid to a
deceased veteran's surviving spouse in the same manner as if
the veteran's death is service-connected, even though the
veteran died of non-service-connected causes, if the
veteran's death was not the result of his or her own willful
misconduct and at the time of death, the veteran was
receiving, or was entitled to receive, compensation for
service-connected disability that was rated by VA as totally
disabling for a continuous period of at least 10 years
immediately preceding death; or was rated totally disabling
continuously since the veteran's release from active duty and
for a period of not less than five years immediately
preceding death; or was rated by VA as totally disabling for
a continuous period of not less than one year immediately
preceding death if the veteran was a former prisoner of war
who died after September 30, 1999. The total rating may be
either schedular or based upon unemployability. 38 U.S.C.A.
§ 1318.
In August 2001, VA temporarily suspended the adjudication of
claims for DIC benefits under the provisions of 38 U.S.C.A.
§ 1318 in response to the decision in National Organization
of Veterans' Advocates, Inc. v. Secretary of Veterans
Affairs, 260 F.3d 1365 (Fed. Cir. 2001) [NOVA I]. The stay
was to remain in effect pending completion of VA rulemaking
specified by the Federal Circuit. Based on subsequent VA
rulemaking, the Federal Circuit decided National Organization
of Veterans' Advocates, Inc. v. Secretary of Veterans
Affairs, 314 F.3d 1373 (Fed. Cir. 2003) [NOVA II]. In NOVA
II, the Federal Circuit revised the stay order imposed in
NOVA I. The Federal Circuit held that VA could properly
construe the "entitle to receive" language of 38 U.S.C.A.
§ 1318 to bar the filing of new claims, i.e., "hypothetical
entitlement" claims, in which no claim was filed during the
veteran's lifetime or where a claim had been denied and was
not subject to reopening. Thus, under VA regulations the
term "entitled to receive" means that at the time of his or
her death a veteran had service-connected disability rated as
totally disabling but was not receiving compensation because
of one of the stated reasons shown in the regulation. See
38 U.S.C.A. § 1318; 38 C.F.R. § 3.22. In order for DIC
benefits to be awarded to the appellant under the provisions
of 38 U.S.C.A. § 1318, it must be established that the
veteran received or was entitled to receive compensation for
a service-connected disability at the rate of 100 percent for
a period of 10 years immediately preceding his death.
It is undisputed that the veteran was not a former prisoner
of war and was not continuously rated totally disabling for a
period of not less than five years from the date of his
discharge from active duty, which was in 1954, so those parts
of 38 U.S.C.A. § 1318 are clearly not applicable.
According to 38 C.F.R. § 3.22, the veteran must have been
receiving, or entitled to receive, compensation benefits at
the time of his death; the appellant cannot establish
entitlement to DIC benefits pursuant to 38 U.S.C.A. § 1318 by
showing "hypothetical" entitlement. See National
Organization of Veterans' Advocates, Inc., supra, 260 F.3d at
1365.
The evidence of record at the time of the veteran's death
shows that he had established service connection for post-
gastrectomy syndrome, evaluated as 40 percent disabling from
July 1979. In a May 2002 rating decision, the veteran was
awarded service connection for schizoaffective disorder. A
disability evaluation of 100 percent was assigned for that
psychiatric disability, effective from August 2001, the date
of the claim for service connection. Hence, the veteran was
not in receipt of a total disability rating for a period of
ten years immediately preceding his death as required under
38 U.S.C.A. § 1318(b). Therefore, the appellant is not
eligible for DIC benefits under 38 U.S.C.A. § 1318(b) on the
grounds that the veteran had been in receipt of, or actually
established entitlement to, a total rating for ten years
prior to his death. 38 C.F.R. § 3.22.
The Board is bound by the laws enacted, and by VA
regulations. 38 U.S.C.A. § 7104. The Board is sympathetic
to the appellant's plight, but it appears that there is no
provision to allow a grant of the benefit sought on appeal
because the statutory and regulatory requirements are shown
not to have been met. The appellant's claim for DIC benefits
under 38 U.S.C.A. § 1318 is denied. See Sabonis v. Brown, 6
Vet. App. 426, 430 (1994) (where the law and not the evidence
is dispositive, the appeal to the Board is terminated).
ORDER
Service connection for the cause of the veteran's death is
denied.
The claim for dependency and indemnity compensation benefits
under the provisions of 38 U.S.C.A. § 1318 is denied.
____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs